CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 11 mai 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sB8084949 { width:138.49pt; display:inline-block } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF8DCB537 { width:16.53pt; display:inline-block } .s25347E17 { width:182.43pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 37224/06 by Piotr KALINOWSKI against Poland The European Court of Human Rights (Fourth Section), sitting on   11   May 2010 as a Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Ljiljana Mijović,   David Thór Björgvinsson,   Ján Šikuta,   Päivi Hirvelä,   Mihai Poalelungi, judges, and Lawrence Early, Section Registrar, Having regard to the above application lodged on 1 September 2006, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Piotr Kalinowski, is a Polish national who was born in   1978 and lives in Chełm. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of   Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as   follows. On 11 April 2001 the applicant was arrested on suspicion of battery. On 12 April 2001 the Chełm District Court ( Sąd Rejonowy ) remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offences in question. It   attached importance to the likelihood of a severe sentence of   imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings. An appeal by the applicant against the detention order, and likewise his further appeals against some of the decisions extending his detention and all his subsequent applications for release and appeals against refusals to   release him were unsuccessful. In his applications and appeals, he   invoked his difficult family situation, in particular the fact that he had a   very young child to take care of. On 29 June 2001 the prosecution filed a bill of indictment with the Lublin Regional Court ( Sąd Okręgowy ). The applicant was charged with aggravated battery. During the court proceedings the courts further extended the applicant's detention pending trial on several occasions, namely on 15 May 2002 (to   30   June 2002), on an unspecified subsequent date, 26 March 2003 (to   26   June 2003), 18 June 2003 (to 26 September 2003), 17   September   2003 (to 26 March 2004), 15 March 2004 (to 6 May 2004), 21 April 2004 (to 30 June 2004), 2 June 2004 (to 16 August 2004), 10   August 2004 (to   10   November 2004), 26 October 2004 (to   26   April   2005), on   an   unspecified subsequent date, 26 July 2005 (to   20   October 2005), on   an unspecified subsequent date, 20 June 2006 (to   22 November 2006), on an unspecified subsequent date and 14   March   2007 (to 14 September 2007). The courts repeated the grounds previously given for the applicant's continued detention. They emphasised the likelihood of a severe sentence of   imprisonment being imposed on the applicant, the risk that he would obstruct the proceedings and the fact that he was a recidivist offender. On 26 March 2003 the Lublin Regional Court convicted the applicant and sentenced him to 15 years' imprisonment. The applicant appealed. On 4 December 2003 the Lublin Court of Appeal ( Sąd Apelacyjny ) quashed the impugned judgment and remitted the case. On 26 October 2004 the Lublin Regional Court again convicted the applicant and sentenced him to 15 years' imprisonment. The applicant appealed. On 17 May 2005 the Lublin Court of Appeal quashed the impugned judgment and remitted the case. On 22 December 2005 the Lublin Regional Court convicted the applicant and sentenced him to 15 years' imprisonment. The applicant appealed. On 20 June 2006 the Lublin Court of Appeal quashed the impugned judgment and remitted the case. On 14 March 2007 the Lublin Regional Court convicted the applicant and sentenced him to 15 years' imprisonment. The applicant appealed. On 18 October 2007 the Lublin Court of Appeal upheld the impugned judgment. On 28 December 2007 the applicant's legal-aid counsel informed him that she had found no grounds for lodging a cassation appeal. Between 18 July 2001 and 7 January 2003 and between 6   March 2003 and 23 November 2005 the applicant was serving a prison sentence imposed on him in other sets of criminal proceedings. B.     Relevant domestic law and practice The relevant domestic law and practice concerning the imposition of   pre ‑ trial detention ( tymczasowe aresztowanie ), the grounds for its extension, release from detention and rules governing others “preventive measures” (ś rodki zapobiegawcze ) are set out in the Court's judgments in   the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25   April   2006) and Celejewski v.   Poland (no. 17584/04, §§ 22-23, 4 May 2006). COMPLAINTS   1.     The applicant complained under Article 5 § 3 of the Convention about the unreasonable length of his pre-trial detention. 2.     The applicant also complained in substance under Article 6 about the unfairness and the excessive length of the criminal proceedings against him. THE LAW 1. The applicant's first complaint related to the length of his detention. He alleged that it had been excessive, relying on Article 5 § 3 of the Convention, which provides as follows: “Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” The Government disputed this argument with reference to the facts of the case. They further submitted that given the severity of charges against the applicant the grounds given for the applicant's pre-trial detention were “relevant” and “sufficient” to justify holding him in custody for the entire relevant period. The applicant's detention started on 11 April 2001, when he was arrested on suspicion of battery. On the following dates the Lublin Regional Court convicted the applicant and sentenced him to 15 years' imprisonment: on 26 March 2003 (quashed by the Lublin Court of Appeal on 4 December 2003), on 26 October 2004 (quashed by the Lublin Court of Appeal on 17 May 2005), on 22 December 2005 (quashed by the Lublin Court of Appeal on 20 June 2006) and on   14   March 2007. Between 18 July 2001 and 7 January 2003 and between 6   March 2003 and 23 November 2005 the applicant was serving a prison sentence imposed on him in other sets of criminal proceedings. Accordingly, the period to be taken into consideration amounts to one year, two months and twenty-eight days (from 11 April to 18 July 2001, from 7 January to 6 March 2003, from 23 November to 22 December 2005 and from 20 June 2006 to 14 March 2007). For the remaining period of his confinement the applicant was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and, consequently, that period of his detention falls outside the scope of Article   5   §   3 (see   Kudła   v.   Poland , cited above). The Court firstly reiterates that the general principles regarding the right “to trial within a reasonable time or to release pending trial”, as guaranteed by Article 5 § 3 of the Convention, have been set out in a number of its previous judgments (see, among many other authorities, Kudła v. Poland cited above, § 110 et seq., and Bąk v. Poland , no.   7870/04, §§ 56-65, 16   January 2007). Turning to the particular circumstances of the instant case, the Court notes that in their detention decisions the courts, in addition to the reasonable suspicion that the applicant had committed a serious offence, relied principally on the severity of the penalty to which he was liable and the need to secure the proper conduct of the proceedings, given the risk that the applicant might tamper with evidence or otherwise obstruct the proceedings. The authorities also relied on the fact that the applicant was a   recidivist offender. The applicant was charged with aggravated battery. The Court acknowledges that in view of the seriousness and the nature of the accusations against the applicant, the authorities could justifiably have considered that such an initial risk was established. The Court takes also note that the applicant was a recidivist offender (see Wawrzelski v. Poland (dec.), no. 33444/02, 20   February 2007). Furthermore, according to the authorities, the likelihood of a severe sentence being imposed on the applicant created a presumption that the applicant would obstruct the proceedings. However, the Court would reiterate that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the gravity of the charges cannot by itself justify long periods of pre-trial detention (see   Michta v.   Poland , no. 13425/02, § 49, 4 May 2006). While all the above factors could justify even a relatively long period of   detention, they did not give the domestic courts unlimited power to   extend the measure (see Kopij v. Poland (dec.), no. 7676/06, 1   July   2008). Nevertheless, in the particular circumstances of the case, and in view of   the fact that the relevant period of the applicant's detention lasted one year and three months, the Court considers that the grounds given for the applicant's pre-trial detention were “relevant” and “sufficient” to justify holding him in custody for the entire relevant period. It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings. The Court observes that there were no significant periods of inactivity on   the part of the prosecution authorities and the trial court during the period to be taken into consideration. The investigation was completed by   the Regional Prosecutor within a relatively short period of time and the trial court held hearings at regular intervals. The Court also notes that on three occasions the case was remitted by the second-instance court. It reiterates that in a number of cases it has found that the repetitive re-examination of the claims within one set of proceedings disclosed a serious deficiency in the domestic judicial system (see   e.g.,   Wierciszewska v. Poland , no. 41431/98, § 46, 25 November 2003). The Court finds however that in the particular circumstances of the present case the domestic courts proceeded without undue delays. In   particular, the Court observes that the case was dealt with by the courts of   two levels of jurisdiction repeatedly within relatively short periods of   time. The court of first instance considered the case on four occasions, the period of first consideration being one year and nine months, while the remaining ones ranging from six to nine months. On four occasions the case was brought before the Regional Court, each time the proceedings being completed within some seven months. For these reasons, the Court considers that the domestic authorities displayed “special diligence” in the handling of the applicant's case.   In view of the above considerations and in the light of the criteria established in its case-law in similar cases, the Court considers that the applicant's detention does not disclose any appearance of a breach of the “reasonable time” requirement of Article 5 § 3 of the Convention. This complaint is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. 2. The applicant's second complaint related to the length of the proceedings, which began on 11 April 2001 and ended on   28   December   2007. They therefore lasted 6 years and 8 months for two levels of   jurisdiction. According to the applicant, the length of the proceedings was in breach of the “reasonable time” requirement laid down in   Article   6   §   1 of the Convention. Under Article 35 § 1 of the Convention, the Court may only deal with the matter after all domestic remedies have been exhausted. The Court observes that the applicant failed to lodge a complaint under the Law of 17 June 2004 on   complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do   rozpoznania sprawy w   postępowaniu sądowym bez nieuzasadnionej zwłoki ). It follows that this complaint must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. 3. Finally, the applicant complained about the unfairness of the criminal proceedings against him and the allegedly wrongful assessment of evidence by the national courts. The Court has examined the complaint as submitted by the applicant. However, having regard to all the material in its possession, and in so far as   the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate his complaints. It follows that this part of the application must be rejected as being manifestly ill-founded in   accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Lawrence Early   Nicolas Bratza   Registrar   President